People v. Gunther CA5

Filed 6/30/15 P. v. Gunther CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F067841 Plaintiff and Respondent, (Super. Ct. No. F12909771) v.

LEROY NOBLE GUNTHER, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Alvin M. Harrell III, Judge. Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max Feinstat, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Franson, J. and Peña, J.

Defendant Leroy Noble Gunther, Jr., was convicted by no contest plea of committing a lewd act upon a 14-year-old child when defendant was at least 10 years older than the victim (Pen. Code, § 288, subd. (c)(1)).1 The trial court sentenced him to two years in prison and imposed various fines and fees, including a $296 fee for the presentence probation report pursuant to section 1203.1b. On appeal, defendant contends remand is required because the trial court failed to determine his ability to pay the presentence probation report fee. The People respond that defendant forfeited his claim by failing to raise it below. The forfeiture issue has been resolved by the California Supreme Court since the parties submitted their briefs in this case. Accordingly, we affirm. Section 1203.1b sets forth the procedure a trial court must follow before it may impose a fee for presentence probation costs. First, the court must order the defendant to report to the probation officer, who will then determine the defendant’s ability to pay. (§ 1203.1b, subd. (a).) After the probation officer determines the amount the defendant can pay, the probation officer must inform the defendant that he is entitled to a hearing, during which the court will determine the defendant’s ability to pay and the payment amount. (Ibid.) Section 1203.1b entitles the defendant to representation by counsel during this hearing. The defendant may waive his right to a hearing, but he must do so knowingly and intelligently. (Ibid.) If the defendant fails to waive his right to the hearing, the probation officer must refer the matter back to the trial court, and the trial court will determine the defendant’s ability to pay. (§ 1203.1b, subd. (b).) It is now settled that a defendant who fails to challenge the imposition of fees pursuant to section 1203.1b before the trial court forfeits the claim on appeal. In the recent case of People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), the Supreme Court stated: “Notwithstanding the statute’s procedural requirements, we believe to place the